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TMI Blog2024 (9) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... claim made by the assessee and, accordingly direct the Assessing Officer to allow the claim of the assessee u/s 11 of the Act. Decided in favour of assessee. - Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri Basant Kumar, Adv. And Shri Anup Mukherjee, CA For the Respondent : Shri Om Prakash, Sr. DR ORDER PER S. RIFAUR RAHMAN, AM: 1. This appeal has been filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [ Ld. CIT(A) , for short], dated 23/01/2024 for Assessment Year 2018-19. 2. The assessee has raised the following grounds of appeal:- 1. That the Ld. ADDL/JCIT (A) erred in upholding the intimation passed by Assessing Officer (Dy. CIT, CPC) u/s 143(1) dated 21.05.2019, which is bad in law and void ab-intio as it was passed without proper assumption of Jurisdiction and application of mind. 2. That the Ld. ADDL/JCIT (A) erred in upholding the intimation passed by Assessing Officer (Dy. CIT, CPC) u/s 143(1) dated 21.05.2019 without appreciating that exemption available u/s 11 of the Act is dully allowable to the appellant. 3. That the Ld. ADDL/JCIT (A) erred in upholding the intimatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.05.2019 wherein he has wrongly computed tax payable by the appellant ignoring the provisions of Act. 11. That the Ld. ADDL/JCIT (A) erred in upholding the intimation passed by Assessing Officer (Dy. CIT, CPC) u/s 143(1) dated 21.05.2019 charging interest u/s 234B and 234C of the Act. 12. That each grounds mentioned hereinabove are independent and without prejudice to each other. 13. That the Appellant craves leave to alter, amend, modify, delete, vary and/or add any grounds of appellant any time hereinafter. 3. At the time of hearing, the Ld. AR submitted that assessee is not pressing the ground No.1 to 5 at this stage. Accordingly, these grounds of appeal are dismissed as such. 4. With regard to ground Nos.6 and 7, the Ld. AR has submitted as under:- Decision of Tribunal relied by CIT(A) in the case of Association of Indian Panelboard Manufacturer v. Deputy Commissioner of Income tax [2022] 143 taxmann.com 418 (Ahmedabad ITAT) relied by ACIT(A) was overruled by Gujrat High Court Reported in [2023 (3) TMI 1374 - Gujarat High Court) stating that condonation of delay by CIT(E) is only an additional remedy. (Pages 1-3 of case law compilation) Filing of Audit Report u/s 10B was dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay u/s 119(2)(b). 2. Further, the Hon'ble Income Tax Appellate Tribunal (Ahmedabad) in the case of Association of Indian Panel board Manufacturer [2022] 143 taxmann.com 418 (Ahmedabad- ITATO [22-07-2022) has held as under: Section 119 of the Income-tax Act. 1961- Central Board of Direct Taxes instructions to subordinate authorities (Condonation of delay in filing Form No. 10B)- Assessment year 2018-19 Assessee, a charitable institution registered under section 12AA, claimed exemption under section 11- on filing original return of Income had not filed Audit Report- immediately thereafter, assessee filed Audit Report in Form 10B by uploading same in electronic mode Central Processing Centre denied exemption under section 11 for want of submission of Form 10B. On appeal, Commissioner (Appeals) held that Form B shall be submitted electronically with effect from 1-4-2016 applicable for assessment year 2016-17 and as per CBDT Circular No. 273 dated 3-6 1970, CBDT had authorized jurisdictional Commissioner/Director of Income-tax to condone delay in filing form 10B, and Commissioner (Appeals) did not have any power under section 119(2)(b) to condone delay in filing Form 10B. Thus, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same is erroneous and contrary to the unambiguous language contained in Section 10B(8) of the IT Act. We hold that for claiming the benefit under Section 10B(8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. Accordingly, the question of law is answered in favour of the Revenue and against the assessee The orders passed by the High Court as well as ITAT taking a contrary view are hereby set aside and it is held that the assessee shall not be entitled to the benefit under Section 10B (8) of the IT Act on non-compliance of the twin conditions as provided under Section 10B of the IT Act, as observed hereinabove It is evident that the appellant did not file Audit Report in Form 10B before due date in violation of Rule 12A(1)(b) of Income Tax Act, 1961. It is a trite law that if a thing is said to be done in a particular manner, it shall be done in that manner and its performance in any other mode or fashion shall be of no consequence Therefore, in application of the above decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Rules framed for availing the benefit under the provisions of Sec.11. It is held that to be directory in nature. I noticed that assessee relied on the decision of Hon ble Madras High Court in the case of Shri Chandraprabhuji Maharaj Jain Juna Mandir Rust Vs. DCIT, Tax case Appeal No.517 of 2019, wherein held as under: 8. As noted by us earlier, the assessee filed the return of income for the assessment year under consideration on 02.04.2009, which was processed and intimation under Section 143(1) of the Act was issued on 21.01.2011. Thus, there was no assessment under Section 143(3) of the Act. The assessee, while filing the petition under Section 154 of the Act, on 22.03.2011, pointed out that the assessee filed the Form No.10 along with the Board Resolution along with the covering letter dated 01.04.2019. However, the mistake done by the assessee was to file hard copies before the Assessing Officer, and not filing the same along with the return of income, which they filed on 02.04.2019. Thus, on the date when the return was taken up for assessment, there was record to show that the assessee had intimated the department about the resolution passed by the Board of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the assessee in earlier year and subsequent years would prove that due to the facts stated above there was delay in filing the audit report and the contention of the assessee was supported by the affidavit of Mohmad Iqbal Vohra (PB-4). The learned CIT(A) on proper appreciation of the facts and material on record in the light of the decisions of the Hon'ble Punjab Haryana High Court and the Hon'ble Calcutta High Court rightly directed the AO to accept the audit report of the assessee and grant exemption u/s. 11 of the IT Act. 9. Respectfully following the same, I am inclined to allow the claim made by the assessee and, accordingly, I direct the Assessing Officer to allow the claim of the assessee u/s 11 of the Act. 10. With regard to ground Nos.8 9, since, we allow the claim of the assessee in ground Nos. 6 7, I direct the Assessing Officer to assess the income of the assessee donovo and allow the claim of the assessee u/s 11 12 of the Act as per law. Accordingly, ground Nos.8 and 9 remit back to the Assessing Officer and, accordingly, grounds raised by the assessee are allowed for statistical purposes. 11. In the result, appeal filed by the assessee is partly allowed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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